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A Changing Patent Landscape: U.S. no longer the most patent friendly jurisdiction in the world

The United States was once again the top ranked country for intellectual property protection in the U.S. Chamber of Commerce’s annual Global IP Index for 2017, but the rankings were closer than ever. Indeed, in 2017 the U.S., UK, Japan, and European Union (EU) economies ranked more closely together than ever before, which was no doubt in significant part due to the fact that the United States tumbled to 10th overall on the issue of patents.

There is no doubt that the U.S. continues to take steps backwards due to variety of self- inflicted wounds. The omnipresent threats of more patent reform, a Supreme Court that has created unprecedented uncertainty surrounding what is patent eligible (see e.g., here, here and here), and a Patent Trial and Appeal Board that has been openly hostile to property owners (see e.g., here and here), allows harassment of certain patent owners over and over again, all the while failing in its mission to provide relief from patent trolls. Meanwhile, a number of countries around the world have taken positive steps forward on the patent front, including countries you might not ordinarily consider as patent friendly jurisdictions.

For example, much has recently been made of the fact that China is aggressively pursuing pro-patent policies and becoming inviting to both patent applicants and as a forum for dispute resolution through litigation in Chinese courts. China has introduced new enforcement mechanisms and specialized IP courts to better combat counterfeiting and piracy, and joining them in these efforts were Pakistan, the UAE and Sweden. And while not reflective in the 2017 rankings, China’s recent patent law changes, which make software and business method patent eligible, should result in a significant improvement in the patent landscape moving forward throughout 2017 and beyond.

Last year also saw multiple governments undertake a review of their IP laws, recognizing that such laws must keep pace with the emerging challenges IP owners face. In South Korea, amendments to the Patent Law helped streamline and expedite the patent examination process. Likewise, the government of Taiwan began a review of its IP laws in an effort to better comply with the standards included in the TPP. Furthermore, many economies recognized the value of leveraging international partnerships through Patent Prosecution Highways (PPH). Countries that signed PPH agreements in 2016 include Argentina, Chile, Colombia, Mexico, Peru, the Philippines, and Vietnam.

Despite these aforementioned positive developments on the global IP landscape, some other countries took unfortunate steps to restrict IP rights in 2016. For example, Ecuador, Russia, and South Africa all introduced new requirements for local production, procurement, and manufacturing. The high-tech sector also continued to face stiff head winds in the Indian market with regard to the scope of software. The Canadian government also continued to apply heightened patent utility standards, and Indonesia introduced a heightened efficacy requirement for patentability and outlawed second use claims.

At this moment in history almost everything we thought we knew about the global patent landscape and patent protection in general is being challenged. The U.S. is not the most patent friendly jurisdiction in the world, instead being tied for 10th with Hungary, which really puts into perspective the fall from grace patent rights are having in America.

The Author

Gene Quinn
is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 13 Comments comments.

Caesar SalazarApril 2, 2017 11:28 pm

Let’s not forget that the sheer number of patents issued doesn’t mean that a patent system is weak. As an analogy, a country that inflates its currency to the detriment of the economy is not said to have a “strong” currency.

Quality matters over quantity.

Caesar SalazarApril 2, 2017 11:31 pm

As for quality, I’ll let the patent experts speak to that.

BennyApril 3, 2017 7:55 am

In the Global IP index, plain packaging rules for tobacco products is listed as a “key weakness” (dilution of trademark rights). Outside of that very narrow context, there is no way in which restrictions on the advertising of carcinogenic products for human consumption can be considered a “weakness”. You could also argue that extending trademark protection to include tobacco products is a weakness.

Gene QuinnApril 3, 2017 10:28 am

Benny-

Once again you speak without knowing the issues, which by now is fairly common for you I realize.

The protestations over IP rights and tobacco relates to the fact that certain governments are stripping trademark rights. You can sell your product as long as you don’t identify what it is and who is selling it, as long as it is in a white package. That is absolutely stupid. It defeats the entire purpose of trademarks, which is to give consumers information so they can make an informed choice.

Of course, if those governments can do this with respect to tobacco products they can likewise do it with respect to soft drinks and fast food and whatever else they deem unhealthy or unsavory. And why stop with health related matters?

Plain packaging laws are just plain stupid. If these governments care so much about their citizens why don’t they just outlaw tobacco products? Or better yet, why don’t they do something about illegal drugs? I’ll tell you… because this is just a sham. It is merely an attempt to grab rights away, period.

Will Set FreeApril 3, 2017 3:27 pm

I fully agree with Gene that such items should be outlawed if they are in fact harmful to human conception/use as it is a scham!

Eric BerendApril 3, 2017 5:29 pm

With the proliferation of legislative bills named in direct contradiction to their actual purpose, operation and empowerment seen recently in Congress, it is relevant to examine Orwellian concepts, as these pertain to power maneuvers in the patent space. When “Big Tech” and legislators make a pronounced noise about “promoting innovation”, one can be fairly certain that the opposite is; in fact; being promulgated.

Up is down. Hot is cold. Black is white. And, when a bill called the “America Invents Act” is passed, it really means, “America Prevents Invention Incentives Act”.

When it suited the “powers that be” in U.S. history, at the time, creators and innovators were supported and protected. Now that there is a perceived benefit of casting a functional pall over the same demographic to other, latter-day “powers”, the original design is under attack and becoming distorted (some might say, perverted) away from its raison d’etre.

The ‘new’ “powers-that-be” want the freedom to use any creative (intellectual) property without restrictions whatsoever. That this is an inefficient sentiment at times, as shown by many situations in which a reasonable license would be much less costly and certain for business planning than litigation; seems of little consideration. Yet, time and again, pirates and infringers dig in their heels and pay their IP attorneys three, five…even some ten times what a reasonably negotiated license would have cost them.

To the entrepreneur and business person in me, this is some weird form of madness, reflecting a personalized sort of wholly unwarranted enmity and bad faith; if not outright criminal mentality. The petulant manner in which some notion of a ‘right’ to steal and plunder is insisted upon, along with the cavalier disregard of damage to the U.S public interest and its IP institutions, together with the unrestrained viciousness of the tactics utilized; reveal a malevolent psychopathy that knows little or no bounds; and which, if left unchecked, threatens to severely undermine humanity’s collective living standards and its survivability, in the long run.

Independent InventorApril 3, 2017 7:19 pm

A big +1 Eric.

Welcome to 1984 … in 2017.

step backApril 3, 2017 11:04 pm

+2

TiburonApril 4, 2017 10:55 am

What a mess! Why would any startup or individual pursue patents? It will be a decade or longer before any meaningful changes arrive. And that suits Google just fine. They have no incentive for change.

staffApril 4, 2017 3:56 pm

‘a Patent Trial and Appeal Board that has been openly hostile to property owners (see e.g., here and here), allows harassment of certain patent owners over and over again’

It is true. Property rights for America’s ‘faculties’ as President Madison referred to our creations and discoveries: inventions, have all but disappeared. When the very government charged with protecting these rights aggressively obstructs our obtaining and enforcing title to them as in patents, and when our highest courts ignore their duty to protect those rights it throws America’s economy into a lawless state surreptitiously controlled by some of the world’s most lawless corporations. These same corps now conspire collectively by repeatedly bringing challenges to the patents of their small competitors in an unlawful pseudo judicial proceeding at the PTO which has shown itself to be all too eager to accommodate. In this way large infringers (thieves) are able to run their small competitors into bankruptcy by having to defend. Here the courts could bring order and reestablish rule of law, but they have refused. These are dark days for America. Is the American dream dead? Is America in a state of commercial anarchy? Must America’s inventors now claim the right to protect their property themselves when the government refuses?

I personally witnessed a situation where some sillycon valley corp lost 200M (in stock price overnight) to avoid paying 200K settlement
But that was before AIA, today they would be safe and free to infringe all they want without paying a dime

Kevin RieffelMay 3, 2017 12:30 pm

These are all arguments why the US patent system is failing inventors–not necessarily why China is rising.

It’s like saying the Chinese Professional Baseball League is the best because MLB’s strikeouts are higher than ever. Meanwhile, myself and many others are suspicious that China is playing with corked bats!

We need to fix the strike zone? (Sorry for the extended baseball metaphor, but perhaps Congress and the WH need to hear it this way)

At IPWatchdog.com our focus is on the business, policy and substance of patents and other forms of intellectual property, such as copyrights and trademarks. Today IPWatchdog is recognized as one of the leading sources for news and information in the patent and innovation industries. In January 2014 we were honored to be inducted into the ABA Blawg Hall of Fame after being recognized for 3 years as the top IP blog on the Internet.